Melvin v. Melvin

Tuck, J., delivered the opinion of this court. At the trial of this cause, the appellant objected to the competency of a witness offered by the plaintiff, on the ground of interest in the event of the suit, which objection was overruled and the witness admitted to testify for the plaintiff as competent. It do.es not appear that the evidence was material to the plaintiff, but in disposing of the case we will assume, that he did testify beneficially to the plaintiff, without deciding (he points made upon the form of the exception. The .competency of witnesses has been much discussed.

Neither judges nor elementary writers have agreed, in terms, in defining the test by which the disqualifying interest is to be ascertained. In adopting, and, in some cases, perhaps, extending too far, the policy approved by Lord Mansfield, in Walton vs. Shelly, 1 Term Rep., 300, of disregarding the subtle grounds on which the old cases were decided, and letting the objection go to the credit rather than the competency of the witness, the ⁵⁴⁹ use of different words in different cases has supplied arguments for a supposed conflict of opinion among judges, when, if considered with reference to the connection in which they are employed, they will be found to convey the same meaning. We have examined the authorities, and find that the rules of law on this question are so fully stated by C. J. Buchanan, in Watts vs. Garrett, 3 G. & J., 355 , that the present case must be governed by it. It is there said: “ When the competency of a witness is objected to on the ground of interest, the interest should appear.

It should be seen by the court, in order that it may be enabled to determine its character, and whether it be such as to amount to a disqualification. It should not rest in mere conjecture or speculation, but should be shown to exist and to be certain and direct, and not possible only. For the bare possibility of an action being brought against the witness furnishes no objection to his competency. And where the interest is of a doubtful character, the objection goes to the credit and not to the competency of the witness.” So, also, the witness must be shown to be certainly, and not prima facie and probably, interested, as where the brother-in-law and sister of a testator were offered to prove the execution of his will, it was held that they were competent, there being no evidence of his having left no children.

Deakins vs. Hollis, 7 G. & J., 311. According to Prof. Greenleaf, vol. 1, sec. 390, the true test is, that “the witness will either gain or lose by the direct legal operation and effect of the judgment, or that the record will be legal evidence for or against him in some other action; it must be a present, certain and vested interest, and not uncertain, remote or contingent;” — and, at sec. 3S6, that “it must be legal, certain and immediate, however minute, either in the event of the suit or in the record.” This doctrine is sustained by the cases referred to, and as to the test suggested, especially by Buller, J., in Bent vs. Baker, 3 Term Rep., 27, and Van Nuys vs. Terhune, 3 Johns. Cases, 82.

From the numerous decisions on this “perplexed question,” we adduce the opinions of Lord Denman and C. J. Gibson, to show the interpretation placed by them on the same and similar expressions with those to be found in the Maryland decisions. ⁵⁵⁰ In Shipton vs. Thornton, 9 A. & E., 314, it was held, that the objector must show the interest with certainty and clearness, and that it is not enough to give evidence of circumstances from which such interest is a probable inference. Under such a state of case, the testimony should go to the jury, to be weighed by the considerations alleged against it. C. J. Gibson, in Bennett vs. Hethington, 16 Seargt. & Rawle., 195, ruled, that no matter how powerfully the witness might be operated on by having a similar case with the one under trial, although he might expect a benefit from the event, he